Double Dipping: Self-funded/Self-insured Disability Plans and Workers’ Compensation
For those of you in Minnesota and whom have self-funded/self-insured disability plans, this blog is for you. Attorney firm Peterson, Logren & Kilbury, P.A. put together a short summary of the recent Minnesota Supreme Court decision regarding the case Bruton v. Smithfield Foods, Inc., 923 N. W. 2d 661 (Minn. 2019).
The dispute in this case was whether or not an employee, whose work comp claim was originally denied and then later accepted, should have been paid lost wages under workers’ compensation law for the time the employee was medically excused from work even though the employee had already been paid under the employer’s short term disability plan for the same time period.
The court found that since there was nothing under the workers’ compensation statues or within the employer’s short-term disability plan that allowed for an offset in this situation, the employee was able to receive benefits under both plans, i.e., the employee got to double dip!
The summary also notes that, “had the employer’s short term disability plan contained a claw back provision allowing for the repayment of short term disability benefits…they would have been able to seek a credit for the short term disability benefits paid.”
The law firm recommends that if your company has a self-funded short term disability and/or a self-funded long term disability plan you should amend your plans to provide that any payments made in short term/long term disability benefits is a credit against workers’ compensation payments in the event the two forms of payments coincide.
I hope this was helpful. Thanks for reading!
Click on the image to the left to read the Peterson, Logren, & Kilbury summary
The previous blog talked about reporting work injuries resulting in in-patient hospitalization to OSHA. Now that you realize just what in-patient hospitalization is, I am sure you will never forget that it needs to be reported, but do your supervisors know?
If an injury occurs at 11 pm on a Friday, the supervisor is likely the first one to know. They probably fill out the incident report and email it to you, your safety officer, or your human resource department who then finds it Monday morning. In most circumstances, this is fine but if the injury resulted in an in-patient hospitalization or other catastrophic injury, it should have been reported to OSHA within 24 hours of the event (8 hours if the work-related incident resulted in death). By Monday morning, it is already too late.
Now I am not saying that the supervisor should be responsible for reporting injuries to OSHA but they should at least know when an injury is significant enough to require a phone call to a manager or someone in your business who is responsible for reporting to OSHA.
I would suggest reviewing your company’s safety policy to confirm if notifying OSHA is included in the employee injury procedure plan. Many companies have a checklist for supervisors to complete when an injury occurs. One statement to add to the checklist is:
“Did the injury result in a death, in-patient hospitalization, amputation, or loss of an eye? If yes contact our safety officer, Joe Schmoe, immediately at the phone number provided.”
Then Joe Schmoe would have his own checklist to complete. Some information Joe Schmoe may like to keep in his catastrophic injury checklist is OSHA’s contact information. Some states have their own OSHA program so it is important to know if Joe Schmoe should report to federal OSHA or a state run OSHA program. There are some helpful links below if you are not sure what your state’s policy is.
The information OSHA would be looking for is:
(1) The establishment name; (2) The location of the work-related incident; (3) The time of the work-related incident; (4) Type of catastrophic event (i.e. fatality, in-patient hospitalization, amputation, loss of an eye); (5) The number of employees who suffered a catastrophic injury; (6) Names of said employees from #5; (7) A contact person for the company with a phone number; and (8) A brief description of the work-related incident.
Following the report, OSHA will determine if further investigation is necessary. There is a chance OSHA could show up unannounced so make sure those OSHA logs are up to date. By the way, OSHA requires logs to be maintained going back 5 years and may ask you for all 5 years’ worth when they show up. You only have 4 hours to hand over your OSHA records.
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specific, news and information.
Most employers know, or at least have read at some point, that a work related death must be reported to OSHA within 8 hours of the incident causing the death. A work related incident causing an amputation, a loss of an eye, or in-patient hospitalization must be reported within 24 hours of the incident.
Okay…did you miss it? Almost every employer I talk to is surprised when I tell them that an in-patient hospitalization must be reported to OSHA directly, not just recorded on the 300 log, within 24 hours!
So what does “in-patient hospitalization” actually mean? Does that mean if an employee goes to the hospital, it has to be reported? Not necessarily. There is a difference between “in-patient” and “out-patient” hospitalization.
In-patient hospitalization it defined by OSHA in section 1904.39(b)(9) of the OSHA Laws & Regulations, (Standards – 29 CFR) as a formal admission to the in-patient service of a hospital or clinic for care or treatment. This usually means an overnight stay in the hospital. In an out-patient hospitalization however, the patient receives treatment and can then go home to recover. Many surgeries are considered out-patient procedures these days so do not assume that an employee who breaks an ankle due to a work incident, immediately requiring an ER visit and surgery, is an in-patient hospitalization.
One simple test I use to determine the type of hospitalization
is to ask the employee if they received a room number. If so, it was likely an in-patient stay.
Exceptions To The Rule
Now there is an exception. OSHA says that if the in-patient hospitalization, loss of an eye, or amputation occurs 24 hours after the work-related incident, it does not need to be reported to OSHA but must still be recorded on the OSHA 300 log, if your company is already required to keep such injury and illness records. So, if the employee in the example above required in-patient hospitalization due to complications with the injury a week after the incident, it does not need to be reported. If a work related death occurs more than 30 days after the actual incident, it no longer needs to be reported to OSHA but again, must be recorded on the 300 log in the death category.
Another exception. If the inpatient hospitalization only
involved observation or diagnostic testing with no actual treatment or care,
you do not have to report it to OSHA.